"We don't like anybody messing with our dogs, our guns, our hunting rights or trying to take property from us," says state Sen. Jack Biddle, a sponsor of the law.

As the owner of two Labrador Retrievers, I'm with Sen. Biddle on this one.

Other states are exploring similar legislative and state constitutional responses:

Calling the high court's June 23 ruling "misguided" and a "threat to all property owners," [Alabama Governor Bob] Riley said, "A property rights revolt is sweeping the nation, and Alabama is leading it."

The backlash against the judicial ruling has not received much attention in the national press, although legislative leaders in more than two dozen states have proposed statutes and/or state constitutional amendments to restrict local governments' eminent-domain powers.

Besides Alabama, legislation to ban or restrict the use of eminent domain for private development has been introduced in 16 states: California, Connecticut, Delaware, Florida, Illinois, Kentucky, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Tennessee and Texas.

Legislators have announced plans to introduce eminent-domain bills in seven more states: Alaska, Louisiana, Oklahoma, Ohio, South Dakota, South Carolina and Wisconsin, and lawmakers in Colorado, Georgia and Virginia plan to act on previously introduced bills.

In addition, public support is being sought for state constitutional prohibitions in several states -- Alabama, California, Florida, Michigan, New Jersey and Texas.

I have been contacted by some cities that are considering similar limitations as well (I'm not sure if they are public yet).

Sadly for Justice Souter, the story does not report New Hampshire as one of the states looking at imposing such limits, so it looks like he is stuck having to take his chances with the political processes to try to fend off the private developer that wants to build the Lost Liberty Hotel on his property.

What the heck is a "Kelo-style taking"? Do you mean the exact same kind of taking that was permitted in Berman v. Parker 50 years ago, and in every subsequent decision?

I fully support legislative efforts to limit the eminent domain power, but it disturbs me no end to see law professors knowingly perpetuating this myth that Kelo worked a sea change in the law, merely because they dislike the decision. A little honesty goes a long way.

Of course it worked a sea change; What communities did before, hesitantly, uncertain that it would be permitted, they can now do confident that the highest court of the land has given them the green light. The dyke may have had leaks before, but 5 justices just dynamited it.

And the outrage is perfectly appropriate; It's one thing for a pitcher to throw an occasional bean ball, it's another thing entirely for the umpire to decide that, never mind what the rules might SAY, beanballs are perfectly acceptable.

Raise your hand if you're also completely terrified that a) Alabama (!) is leading the nation in their understanding and application of the checks and balances inherent in our system of government, and b) you agree completely with Alambama lawmakers?

In an elaborate signing ceremony in the State Capitol's historic Old House Chamber, Mr. Riley said, "Alabamians can rest assured that their homes, farms, business and other private property are safe from being seized by government for a shopping center, or a factory, an office building or new residential development."

Really? Note this graf:

Although the Alabama law that the governor signed yesterday would prohibit such eminent-domain seizures, it contains an exception that would permit takeovers of blighted properties that could be turned over to private interests -- a provision that critics call a loophole for future abuses.

There's blight in Alabama, no?

No doubt, this will require another "elaborate signing ceremony" to rectify...

The linked-to story appears to be incorrect in saying that AL was first. Delaware's law was signed on July 21. It provides in relevant part, "Notwithstanding any other provision of law to the contrary, the acquisition of real property through the exercise of eminent domain by any agency shall be undertaken, and the property used, only for the purposes of a recognized public use[.]" 29 Del. C. @ 9505.

Doesn't this just prove that the Kelo court was correct in its decision? Special interests (the property owners) went to court claiming that they had a constitutional right that is nowhere enumerated in the constitution (i.e., the right to resist eminent domain, as opposed to just receiving their just compensation). The Court denied their claim, finding no basis in the constitution to recognize such a right, and telling them that the remedy they sought was to be found in the political process. So now legislatures and governors (i.e., the political process) are passing laws to protect the special interests (property holders) through a majoritarian and democratic process (as opposed to the dreaded "legislation from the bench" that the Kelo property owners were looking for).

The DE law seems fishy to me. Does the law ooze enough statutory intent to effectuate a limit upon Kelo? Namely, is a "recognized public use" going far enough? Or is this the sort of thing that those radical, activist state sup.ct. judges will shoot past in their illusions of grandeur and in incorrectly following Sup Ct. precedent (instead of the law of their state)?

Nobody: I think you are kidding. B/c no reasonably intelligent person would seriously assert what you said in serious so I give you the benefit of the doubt.

"no basis in the constitution to recognize such a right"

D/P clause of the constitution (in all its forms).

Takings clause-PUBLIC USE + just compensation

Not to mention the "constitutional right to privacy" that I recently heard a talking head on CNN . . .well, talking his head about. Wait, which clause is that. . .Article III. . .? I can't find it. Somebody point me to it.

TL,
I assure you that I'm not kidding. There is not a clause in the constitution that explicitly says that private property may only be taken for public use. We can argue all summer long, but you won't be able to refute that fact. There's simply no explicit statement. So-called conservatives are always complaining about the Supreme Court recognizing unenumerated rights, thereby stripping the political process of the right to weigh in. Well, they got their wish here, and THE POLITICAL PROCESS IS WORKING. Alabama, Delaware, and other states are banning what Mr. Zywicki called "Kelo-style takings." Nobody is losing their land. What's the problem? And what's the relevance of the right to privacy to this discussion? Are you just trying to change the subject?

Todd, yes we should all follow Alabama -- a state which recently REFUSED to repeal portions of its state constitution explicitly endorsing segregation in schools. And don't think that quote doesn't also include behind the scenes "messin' wit' our right to keep the black people in their place."

There is not a clause in the constitution that explicitly says that private property may only be taken for public use.

Yes, it's possible to read the clause in the Fifth Amendment such. However, if you read the clause that way, it seems to me that you have to read it that just compensation is only required when a taking is down for public use, but that when private property is taken for other than public use, there is no guarantee of just compensation. I think that that's absurd on its face.

To answer other complaints-- Yes, Kelo is quite a small step from earlier decisions, just as previous rulings were a small step down the slippery slope from earlier precedent. And yet, the sum effect of each of these tiny changes (which stretch back at least 50 years, but possibly more like the 90 pointed to by Justice Thomas) was a large and obvious change. The decision also helped focus people's attention on exactly how far the power had shifted in the years.

Berman generally restricted the use of eminent domain to removing slums and blight. It too set off a wave of eminent domain usage. Yes, on the one hand it is a very tiny difference between Berman and Kelo-- after all, the government can merely have a very loose idea of what it considers "blight." Yet at the same time it has led to increased use of eminent domain, and it was another step down the same slope that started with considering taking land to be used for privately owned railroads as a public use.

Actually, in NH, State Senator Tom Eaton is chairing a committee to hear proposals for tightening up eminent domain, and I've proposed a state constitutional amendment to specifically close the Kelo loophole. This all being said, NH already has, according to Justice Kennedy, what is in his opinion the fairest, tightest, and most generous eminent domain laws outside of those states that ban it entirely. So in this respect, Souter and Breyer are protected by laws that they apparently didn't feel the rest of the country was entitled to... one more sign of judicial tyranny.

If Alabama governments can still take "blighted" property, then the loophole swallows the bill. The bill then does almost nothing, except let the politicians score some undeserved PR points.

To see how broad the "blighted" exception can be, take a look at this decision from an Ohio state appellate court. (The appeals court merit briefs are available though the clerk's website.) It deferred to a city's decision that called a middle class neighborhood "blighted."

The case is currently being briefed on the merits in the Ohio Supreme Court. I'm not arguing the appeals court was wrong. It may very well have been right on the law. My point is that limiting Kelo takings to "blighted" neighborhoods is not much of a limitation.

Mike Lorrey,
I think AF, in his post right above yours, has it right. You say that "Souter and Breyer are protected by laws that they apparently didn't feel the rest of the country was entitled to... one more sign of judicial tyranny."

But, as Senator Eaton demonstrates, if the rest of the country is not "protected," their beef lies with their sovereign state legislatures, and not with Justices Souter and Breyer. These justices did not say that the rest of the country is not entitled to protection. They merely said that such protection is not afforded by the U.S. Constitution.

If Justices Breyer and Souter held that the U.S. Constitution does not criminalize murder, would you take that as their endorsement of murder? Of course not. They would merely be saying, correctly, that it is up to the several states to enact laws prohibiting murder. A holding to the contrary would be judicial tyranny. How can it be judicial tyranny to refuse to act? What is tyrannical about saying "This is a matter for the political process, composed of the majority, to decide." Aren't the "tyrants" those in the state house, or city hall, who are seizing land?

It amuses me to no end to see certain people struggling to use the same rhetoric that they use to criticize decisions like Casey and Lawrence ("activist courts", "judicial tyranny", "rewriting the Constitution", and so forth) when they criticize Kelo.

Of course, I am fine with criticizing Kelo. But the essence of the criticism should be that the Court deferred too much to the relevant political actors in a case where important individual interests were at stake. And if standing up for the power and the duty of the courts to review the actions of elected officials in the name of protecting individual interests flies in the face of your general rhetoric ... well, either you should rethink your rhetoric, or reconsider your anger about Kelo.

I find it amusing that some people in my orbit who wouldn't conceive of trusting abortion to the legislative process of the various states are perfectly willing to trust the definition of public use to such bodies.

But the essence of the criticism should be that the Court deferred too much to the relevant political actors in a case where important individual interests were at stake.

What if the essence of my criticism is that in Kelo, there is an obvious textual reference to eminent domain in the Fifth Amendment (combined with the Incorporation Doctrine), whereas there is no obvious textual reference to the right to privacy or to the right to sodomy? In all cases IMO Justices ignored the actual text of the Constitution, so that is "rewriting the Constitution."

Certainly you are welcome, Medis, to have your own basis for critcism. It is indeed consisten and cogent. I take great exemption to your apparent belief that my criticism is inconsistent.

Regardless of whether you believe Kelo was rightly decided, it does seem weird to call the legislative response a backlash when Kelo explicitly left the issue up to legislature.

People, perhaps mistakenly, thought that the practice was not permitted or were not aware of it. Many, though not all, thought that either it was not permitted or that the Court would rule to not permit it. Upon finding out that the Court allowed it, people, many of whom felt that the Court should have ruled the other way, decided to do what they could to limit it and change the law so that the end result, though not the process, would be the same as if the Court had ruled the other way.

Seems like a backlash to me. Briefly, if not for the ruling going the way it did, the laws would not be passed.

I did not include originalist arguments on my list, quite deliberately.

In contrast, I think a naked textualist argument does one little good. As has often been noted, the relevant clause does not in fact say that the government can only take private property for public use. Moreover, even if it did say that, I honestly do not see how someone could think that the phrase "for public use" is more clear, on its face, than something like "establishment of religion", "due process", or "equal protection". If your general belief is that the "unelected courts" should not be reading such phrases broadly when it would thwart the actions of political actors, then Kelo should not anger you.

But as I noted, one might augment the explicit text, through originalism or some other doctrine, and read into this clause a power and duty on the part of the courts to review the uses to which the political actors intend to put the property that they take. Of course, one might augment the explicit text in other ways and find other authorizations for the court to review the dictates of the political actors. But to ask the courts to go beyond what the text explicitly requires them to do in this case, but not in other cases, does indeed strike me as contradictory.

Friends, there is an argument that the Takings Cl of the 5th says "nor shall private property be taken for public use, without just compensation," instead of "nor shall private property be taken for private use, and only for public use w/out just compensation."

Apparently the Framers left out the operative italicized phrase. Writings of the Framers taken jointly and severally suggest that they would consider it a tyranny to allow such a "taking" b/c they left out the italicized bit above. I don't think this is drumming up an unenmerated right.

"I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?"-Alexander Hamilton, Federalist No. 84

"The Constitution is not an instrument for the Government to restrain the people, but an instrument for the people to restrain the Government."-Patrick Henry

"When faced with a clash of constitutional principles and a line of cases wholly divorced from the text, history and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original meaning."-Thomas, J., dissenting (Kelo)

I get it, legal liberals, you are trying to catch textualists with their pants down. (And I should add that I could spout a much more plethoric list of catchy quotes from the Framers of our Constitution, but I'll err on the side of brevity.) Unlike privacy, contraceptives, internet pornography, and wire fraud we have a picture of what the Founders were trying to do with the last clause of Amend V.

(Aside note to students of history: Ron Chernow's Alexander Hamilton on audiobook is very well done and entertaining).

PS- I have no knowledge of DE's courts other than the race to the bottom in the Corp world. The earlier activist judge stuff was tongue-in cheek.

As I noted previously, I have no objection to applying originalism to the Takings Clause.

I would also note, however, that we also do not know whether the ratifiers throught that an automobile parking lot (one of the planned purposes for the land in Kelo) was a "public use." Hence, one might say that there is no right to keep one's house from being turned into a parking lot explicitly stated in the Constitution.

This, of course, is a typical problem for originalists: if we over-specify the right or interest in question (eg, a right to homosexual sodomy, a right to internet pornography, a right to internet pornography, or a right to keep your house from being turned into a parking lot), then the Constitution naturally will not explicitly contain that specific right.

I have never thought this is a good argument against originalism in general, however. It merely suggests that rather than looking for highly-specified rights, we originalists are often looking for more general principles. And I have no problem with--and indeed support--the claim that the state's actions in Kelo violated one of the principles that the Founders intended to protect in the Constitution.

My point is simply that one should realize that this way of criticizing Kelo is in obvious tension with the notion that the courts should not thwart the political actors unless the Constitution very specifically addresses the asserted interests in the case in hand. Of course, that was always an odd argument to make, and yet it has not stopped people from insisting on asking questions like whether there is a "right to abortion" or a "right to homosexual sodomy" in the Constitution ... as if one would expect such a thing in the first place.

The aforementioned is primarily intended for persons other than you, Medis. Specifically, Nobody's delicious argument seems to leave a foul taste in my mouth (looks like duck, tastes like mock duck).

But Medis, I know for a fact that the Ct's application of these grand principles in Kelo were errant. I know that the Framers didn't think that a pharmaceutical lab/plant was a "public use." How do I know? #1) I have read an average-above average amount of their stuff. #2) I had an Eleanor Roosevelt-style seance with several of the Framer's just last week. They were quite mad about this.

Remember, even a textualist judge has to apply the general judicial philosophy of originalism to the facts of individual, actual cases and controversies. And that is where we monday-morning quarterbacks get to play. I think Kelo is the most direct ignoring of "Legislative history" (the Const., no not the AL legislature) that the Sup Ct. has ever done.

I think Kelo is the most direct ignoring of "Legislative history" (the Const., no not the AL legislature) that the Sup Ct. has ever done.

I don't know, there are some awfully strong contenders for that booby prize; The post Civil war Court's treatment of the 14th amendment, for instance, (Which lingers on in the form of only partial "incorporation".) or the New Deal Court's treatment of the formerly [i]interstate[/i] commerce clause, the way the Court allows the 6th amendment's guarantee of trial by jury in [b]all[/b] criminal cases to be violated in the case of "petty" offenses, even if multiple charges cause the aggregate time in prison you're facing to mount up into decades... The Court on frequent occasions has accorded the Constitution all the respect due a snot rag.

I think Kelo is the most direct ignoring of "Legislative history" (the Const., no not the AL legislature) that the Sup Ct. has ever done.

I think Brown v. Board of Ed. takes that particular prize. The Congress which enacted (is that the correct verb?) the 14th Amendment was responsible for running only one public school system, the District of Columbia's. The DC schools were segregated. How can one claim that the framers of the 14th Amendment meant to prohibit school segregation, when they themselves operated segregated schools?

As I had mentioned earlier on this blog, it is impossible to have a textualist reading without some kind of originalist interpretation. Otherwise, you have no idea what the words mean, since words change meanings over the years. Also, very very few conservatives are actual literalists. Most are some version of originalist. So, an originalist reading would pretty clearly yield that private land cannot be taken for private use.

The Kelo decision was a problem not merely because it only advanced the ball from Berman a little but further. The main problem was that the taking wasn't even done by the City of New London for Pfizer. The City ceded its takings power to a private entity, the New London Development Corporation, which did the taking itself, with the help of New London cops as its own private goon squad to enforce its rules. Clearly, private property here was taken without Due Process of Law since a private entity cannot guarantee such due process. Imagine if the City of New London ceded its police and court power to a private entity.

Dick, non-payment of child support IS contempt of court. I think the theory is that the incarceration is not punitive and the contempt is not criminal, so a jury trial (or any trial) is not required. The incarceration, rather, is meant to induce the person to comply with the relevant court order.

I actually think one can have a textualist reading without originalism. One could, for example, interpret the text using contemporary meanings. That may not be a good idea, but I don't think it would be non-textualist. This is not an idle point--I believe that some people selectively apply originalism, abandoning it for contemporary literalism when the latter approach might better serve their desired ends.

Indeed, I think that is the underlying character of arguments to the effect that "nowhere does the Constitution say you have the right to do X." The person proposing such an argument is offering a literal reading of the text, and insofar as it is not accompanied with a genuine attempt to apply originalism to the text, it is necessarily a contemporary literalism.

Once you've conceded that a literal reading of the Fifth Amendment does not rule out the result in Kelo (and I think you have no choice but to concede that), there's no remaining powerful critique of Kelo on methodological grounds.

The originalist argument doesn't carry that much weight in the real world. It's true that a lot of conservatives claim to be originalists, but the fact is that very few practicing lawyers, judges, or ordinary people of any political stripe are willing to accept the consequences of originalism, which would mean, among other things, upholding racial segregation and striking down the federal minimum wage, the partial birth abortion ban, and a good portion of federal criminal law. Since we're not willing to accept originalism in all cases, originalism isn't very compelling as a methodological argument; you always need to explain why we should be originalist in this case but not in those other cases.

Without a strong methodological argument, you're left saying how bad the situation was on the ground in Kelo. Agreed, it's bad. But conservatives have been telling us liberals for generations that just because something's bad doesn't mean it's unconstitutional.

I don't think this is a mish-mashing of legal philosophies at work. Originalism and textualism blend together about like black and dark grey. I doubt that "judicial conservatives" are being unprincipled or confused in a sliding scale use of these standards. Rather, originalism needs to be used when the "plain language" suggests an arbitraty or ludicrous proposition. History must be our template for this sort of analysis.

In my Chemerinsky con law text he says that legislative intent is the second tool of interpreting statutes, after the words itself. As J. Thomas said in the Kelo dissent (above), there are times when this originalism absolutely must augment the text to avoid terrible results. (As an aside, there have been instances when the Constitution meant what it said, making an Amendment akin to the 13th become necessary).

Nonetheless, there is no conspiracy by right wingers to "selectively apply originalism" going on here. At least not in what I am writing (I will speak for myself only). Some of us are merely following hierarchical rules of interpretation (with the blessing of Chemerinsky, no less!).

Medis-one can have a textualist reading without originalism, but not if common sense, or 200 years of history tell us that we've gone astray.

First of all, "strict textualist" argument that the gov't can take property without paying just compensation is obviously absurd. If it were true that just compensation must be paid in cases of takings for public use, but no compensation need be paid in takings for private use, the result would be so clearly absurd. The liberals here seem intent to turn this controversy on conservatives by arguing that the takings clause does not work as a "strict textualist" interpretation. OK, fine, to avoid an absurd result we must turn to some (basic) history - the founders were interested in private property rights. So the absurd result is avoided by application of a dash of historical understanding. (Seriously, do any of you really think that the Constitution permits a government taking for private use with NO compensation?)

In return, many of you are arguing that the Kelo court simply deferred to local legislative decision making concerning the scope of the protection afforded by the Constitution. As we typically do, the conservatives (unfortunately) took the bait and immediately turned to anti-sodomy laws and abortion. I think this is a mistake. The question I have for the liberals is this: Could a local government also choose to define the scope of the 4th amendment prohibition on unreasonably searches and seizures, and if it did, should the court defer to legislative judgments that would provide less protection that the 4th amendment has been construed to provide?

I don't mind striking down the federal minimum wage. As for racial segregation, read Michael McConnel's work on originalist arguments for the result in Brown.

I am actually not THAT much of an originalist. I sort of buy Posner's pragmatism/utilitarianism. But, I think that no matter what interpretive philosophy you have, an originalist attempt ought to be made FIRST before any pragmatic considerations come about. If originalism can resolve the issue, good. If not, then the next step ought to look at pragmatic considerations. But, in the Kelo case, originalism, in my view, pretty clearly gives the result that what New London did was wrong. There is a hierarchy to interpretation. First is plain textualism. Then, after that, originalism. If no answer still exists, pragmatic considerations ought to play a role.

To Medis--

I actually disagree with those arguments about rights that you criticize. I also disagree with the view that the Ninth Amendment is a "rule of construction." Yes, some conservatives do argue that way. But I think you underestimate the diversity of legal conservatism.

Dick, non-payment of child support IS contempt of court. I think the theory is that the incarceration is not punitive and the contempt is not criminal, so a jury trial (or any trial) is not required. The incarceration, rather, is meant to induce the person to comply with the relevant court order.

Which reminds us that there's a thin line between "legal fictions" and "legal lies".

Does anyone think the Alabama law significantly restricts Kelo takings? It doesn't sound like it. As I noted above, allowing Kelo takings of "blighted" property is a loophole big enough to drive a bulldozer through.

There's nothing like reading the text of a bill to I found the text. It's here at the website of the Alabama legislature.

Section 11-47-170(b) says:

Provided, however, the provisions of this subsection shall not apply to the use of eminent domain by any municipality, housing authority, or other public entity based upon a finding of blight in an area covered by any redevelopment plan or urban renewal plan pursuant to Chapters 2 and 3 of Title 24. . . .

Why do people think this helps? It still permits government to forcibly take land from poor people and sell it to rich people.

Unless I'm missing something (and I admit that I maybe missing something), opponents of Kelo should not be giving the Alabama Legislature any credit for this.

Actually, Medis, originalists don't have problems with what you specify because in terms of individual unnamed rights, the 9th Amendment applies. That is where privacy, choice, travel, and all the other unmentioned common law rights reside that the founding fathers deemed too obvious and well established to need protection. The rights they explicitly protected in the earlier amendments were all those which had been in dispute with the crown during the colonial period. Thus the first eight amendments are not an exclusive list, the ninth is an all encompassing 'whatever else'.

If the Constitution didn't clearly say "public use", then I would agree with the majority that Kelo was a 10th Amendment issue for the people of each state to decide through their legislatures. However I find it typically hypocritical that the typical activists were the ones arguing for a states rights interpretation, when they normally deny that states rights exist.

The fact that the Constitution does in fact say "public use" puts the issue on the SCOTUS to apply either an activist or an originalist interpretation. Given how moderates have loved O'Connors tendency to split the middle over the years, they should take guidance from how vociferous she was in the Kelo dissent she authored against the majority opinion.

Furthermore, I wouldn't even call the majority opinion a majority opinion. That opinion only got 4 votes, while Kennedy penned his own concurring opinion that sought to draw a tighter noose than the others wanted, and he even noted that NH's ED laws should be a model for the rest of the country in their balance.

I frankly don't care if the expansive view goes back to the Roosevelt court packing era, or to Wilson, or back to the era of rail. The historical fact remains that it didn't go back to the founding fathers.